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Saturday, April 26, 2014

It appears that PAS will be seeking to give effect to the Kelantan Syariah Criminal Code Enactment II of 1993 by way of a Private Members Bill in Parliament. Through this, PAS aims to introduce hudud laws into Kelantan for Muslims living I the state. The term ‘hudud’ (literally “limits”) refers to offences (and their corresponding punishment or sentence) that are considered by jurists to have been prescribed by the Quran and the Sunnah of the Prophet Muhammad. Punishments include death (by stoning), flogging and amputation.

It may be recalled that the 1993 Enactment, like its counterpart the Terengganu Syariah Criminal Enactment of 2003, which additionally introduced Qisas (retaliatory) offences and punishment, have been the subject of controversy since their inception. These laws, it was thought by many, were not only unconstitutional; they sought to codify impressions of Islamic criminal law that were not necessarily universally accepted.

Both the Kelantan and the Terengganu Enactments did not come into force, in part because of challenges to their constitutionality and public outcry. In 2003, Zaid Ibrahim was given leave by the Federal Court to challenge the validity of these enactments on the basis that the Legislative Assemblies of Kelantan and Terengganu did not have the competence to enact these laws. I appeared as counsel for Zaid Ibrahim. The Government of Malaysia, through the Attorney General, supported the applications. Though the petitions were ultimately withdrawn, the matter was thought to have ended there. The subject remained within the realm of politics and political brinksmanship.

Or so it was thought. The recent initiative to implement the Kelantan Enactment, albeit with the endorsement of Parliament, calls for a reappraisal of the matter, in particular its constitutionality and lawfulness.

No matter how many times the politicians say otherwise, Malaysia is not an Islamic state from a legal standpoint. The Federal Constitution declares itself the supreme law of the land. All actions by all organs of the State, including the Legislature and the Executive, at the Federal and State levels, must act consistently with that supreme law.

Legislative power is divided between Parliament and the respective state legislative assemblies. The delineation of legislative powers is prescribed by the Federal Constitution itself, the 9th Schedule of which sets out in three separate lists – the Federal, State and Concurrent Lists – the fields of legislative competence of these lawmaking bodies. Criminal law as the term is commonly understood is within the domain of Parliament. The aim was to allow for the creation of a uniform system of criminal law applicable to all persons in Malaysia, a state of affairs required by the guarantees of equality before the law, equal protection of the law, and the equal protection of life and liberty.

A minor exception was allowed for. Recognising the place of Islamic personal law in pre-merdeka Malaya (later Malaysia), State legislative assemblies were vested with the power to create Islamic law for personal law purposes. This included the power to establish Islamic courts, and create offences against Islamic precepts. In deference to federal control over matters of criminal law, the Federal Constitution required that sentencing powers for such offences be vested in the Islamic courts by Parliament. As thing stand, a federal statute – Syariah Courts (Criminal Jurisdiction) Act 1965 (Revised 1988) – limits the sentencing powers of the shariah courts to imprisonment of three years, with any fine exceeding five thousand ringgit or with whipping exceeding six strokes, or with any combination thereof.

Although we are yet to see what it is that the Private Members Bill is aimed at, it stands to reason that it will seek to amend the 1965 Act in so far as Kelantan is concerned to allow for hudud offences and sentences, with particular reference to the 1993 Enactment. From media reports it would seem that some PAS Members of Parliament are of the view that a simple majority of members present in the Dewan Rakyat would be sufficient to push the bill, and as such hudud in Kelantan, through. I beg to differ.

For one, this viewpoint ignores the fact that the Kelantan legislative assembly was not competent to enact the 1993 Enactment. In creating the offences and prescribing the sentences that it does, it has encroached into the domain of Parliament for having created criminal offences. It has in effect created a parallel system of Islamic criminal law that goes beyond the constitutionally contemplated scheme of personal law offences. This not only violates the legislative provisions of the Federal Constitution, it offends the various guarantees of fundamental liberties accorded by the Federal Constitution to all citizens, including the Muslims of Kelantan. It would wholly undermine the constitutional arrangement of this nation and irreparably damage its basic structure.

If this is what the Private Members bill seeks to achieve, then it is clearly misconceived. Leave aside concerns about the basic structure, such an effort would be tantamount to an attempt to amend the Federal Constitution. In the ordinary course, this would require a majority comprising two-thirds of all members of both Houses of Parliament.

As I understand it, private members bills are not treated as matters of priority. I cannot recall when we last heard of one being debated in Parliament, they are pushed to the end of the list and called up only on the completion of government business. Chances are that the proposed bill would never see the light of day.

The political climate is however murky, and extremism appears to be lurking on the fringes. A declining economy, continuous emphasis on race and religion and an ineffective education system have collectively served as an incubator for a reactionary mindset amongst a large number of Malaysians. I am concerned that desperate ambition may make an alliance with PAS on this subject seem acceptable to UMNO.

If so, and I hope it not to be the case, then it cannot be emphasised enough that the context make this a matter of great seriousness. The implications are tremendous.

This is not about Islam, or being anti-Islam. I do not think it open to anyone to suggest that the legal framework of this country has done anything other than to serve and promote the interests of the religion. Muslims in this country have every resource at their disposal to profess and practice their faith.

Rather, this is about standing by a shared commitment that we undertook in 1957 when we declared ourselves citizens of an independent nation.

Malik Imtiaz Sarwar is a practising lawyer and the Immediate Past President of the National Human Rights Society of Malaysia (HAKAM). This comment is dedicated to the memory of the late Karpal Singh who fearlessly and untiringly defended the basic structure of this nation

Friday, April 25, 2014

(I was privileged to have been invited to speak at the memorial event held in honour of the late Karpal Singh on 24th April 2014)

Allow me to begin by expressing my heartfelt condolences to the family of the late Mr Karpal Singh.

Mr Karpal was a close friend of the family.

I grew up with his children, became their schoolmates in secondary school. First Jagdeep, a year below me, then Gobind, Ram, and Sangeet. Mankarpal was a little too far behind. We treated each other’s houses as our own. We were close enough for our respective mothers to scold us all. There was no discrimination. I describe this to you not as a mark of distinction, or a source of pride, but rather as a means to say that the man I came to know, and love dearly, was always simply Uncle Karpal.

As a young boy, he was a towering presence. Larger than life. That man on the posters, on the back of the jeeps, vans and lorries that carried him on his election campaigns. The walls of the boys’ rooms were filled with cut outs of his exploits, the Lat cartoons that he was quite regularly featured in. His was that comforting presence that, often absent, was nonetheless cherished, even if it involved some of the strangest pranks. In him, we had an ally, not just someone who would protect us from the wrath of our mothers when we created trouble, but someone who would quite happily get involved in the mischief we were brewing if he had the chance.

Curiously, it seemed the like the most normal thing in the world. This world-class advocate, fearless defender of human rights, parliamentarian, to be getting wholly involved in the childishness his sons and I were more than happy to engage in every chance we got. He was just the coolest person in my view.

Maybe it was because we, I, didn’t quite understand the true nature of events that were unfolding. Those became apparent in 1987. I was in Singapore for my A Levels when he was detained.

I knew by then that I would become a lawyer. I knew too that I wanted as much as possible to be able to fight the causes that I believed in. It’s only with his passing that I have come to realise how much he had influenced that choice. How much of a role model he had been.

I would like to focus on Karpal the lawyer.

I spent some time today meandering through the list of reported cases that Karpal handled. There were almost a 1000 according to the Current Law Journal database. His achievements, and it did not matter whether he won or lost the case, that was decided on the facts, he more usually than not, won the point of law, were like a road map to the evolution of criminal and constitutional law in the country. The right of accused persons to counsel, to the principles underlying the granting of habeas corpus, the standard of proof in criminal cases, the powers of the monarchs in the constitutional framework that governs us, the democratic underpinnings of our electoral system, the fundamental liberties of citizens, these and many other principles he helped clarify through the courts, signpost our nation’s journey through the four plus decades that he was a member of the Bar.

It did not matter that he was constantly beseiged, in one way or the other. It did not matter that the disappointments were many. He held an unshakeable belief in the validity of the system, its value. He had faith in our constitutional system, and measured his value by how he could contribute to that system as a lawyer. In all the tributes from lawyers and judges that have poured in since his untimely passing, the narrative has been one of a ethical, gentlemanly advocate who was skilled and appreciated the nature of the adversarial process.

As I read through his cases this afternoon, I was humbled. The practise of law in this country has become more of a challenge with each passing year. More increasingly, those of us who appear in the courts ask what value we bring to the process, to our clients. But challenging as it is for us, was it less challenging for those who preceded us? Karpal had to face operasi Lalang, the constitutional crisis of 1988 and its terrible impact on the judiciary and the legal system, the 1998 trials of Anwar Ibrahim, the scandals that the V K Lingam RCI brought into focus. He was unfaltering, unwavering in his commitment to his duties as lawyer, citizen and statesman.

It does not mean that he was not frustrated. In the last few years, I began to spend much more time in the appellate courts. There, lawyers spend many hours waiting to be called up. It gave me a chance to talk to him, lawyer to lawyer, though in all honesty, it was difficult not to revert to that fidgety child he probably remembered, and thought of, me as. But the one thing that came through consistently was that we could not give up. We had to soldier on for the betterment of the profession, the nation.

It reminded me of what Raja Aziz Addruse, another towering Malaysian, used to say. We have to keep on knocking our heads against that door. One day, it will open, and some light will shine through.

That is the legacy that Karpal left us. That is the sacred trust that we carry in his memory. He asked for nothing and gave of himself wholly.

Sunday, March 23, 2014

I have been finding writing my monthly opinion piece an increasingly challenging task over the last year. It is not for a lack of material; this country is a veritable goldmine when it comes to things to write about, especially in a column on the rule of law.

In just the last two weeks, we have seen Anwar Ibrahim convicted of sodomy and sentenced by the Court of Appeal in a manner that has raised some eyebrows (while glasses have been raised in other quarters, I am sure), and Karpal Singh sentenced to a fine of RM4,000 for saying something which, it would appear, can only be thought of and done (but not spoken of) after a hearing in which the prosecution demanded that the court impose a deterrent custodial sentence on the wheelchair bound septuagenarian for his being a threat to the institutions of this country. Additionally, MH370 disappeared in circumstances which almost everyone but the Malaysian government is describing as questionable, and a Deputy Minister is reported to have described non-Malays as being less sensitive to the rape of their children. Marquez or Llosa could not have asked for better material with which to paint their caricatures of the banana republics that were often the focus of their writing.

The truth is evident, I think. We have plummeted as a nation to a level of intellectual and moral bankruptcy that is as staggering as it is banal. It seems that we are mired in the political schemes of an elite that no longer cares what others think of it and which believes it is entitled to act in its own interests over everything else. Were it not the case, the Government would be acknowledging that the nation is being brought to its knees, and is staring in the face of potential sectarianism, by the self-serving policies that it continues to impose on Malaysians.

It can, and probably will for as long as it is able to, continue to delude itself into believing that it is doing more than paying lip service to the legitimate expectations of all Malaysians to social security. Reality however has a tendency to impose itself in the most inconvenient manner.

For instance, who will provide for the thousands of unemployable Malaysians who have been churned out by academic institutions of dubious value that the regime continues to defend against criticism. If Malaysian universities are not getting into the top ranks of academic institutions internationally, is it not obvious that they are not being managed in a way that they need to be? Would it not be better to address the real problem rather than deflect the issue by blaming everything but what really needs to be blamed? It may be that Malaysian leaders have over the years have been hardwired to think and act in that way. How else can one explain the Defence Minister retorting: “There is only confusion is you want to see confusion” to suggestions from the international media on MH370.

What happens when racial policies have left the institutions in the hands of persons simply not qualified or competent to act in a manner their roles require, if that has not happened already? None of us would put ourselves in the hands of a cardio-thoracic surgeon who was not qualified and sufficiently experienced to do what he or she had to do. And yet, the Government continues to do just that with the nation. A cursory glance at the institutions of state would reveal that we do not, as a rule, have the best people for the job in the institutions of the state (this is not to say that all those in positions of leadership are not qualified or competent). I think the Government would be hard-pressed to say otherwise. And yet, these individuals are defining and implementing policies that will have a tremendous impact on the future of this country.

The point is that all of this has been said before. It has become an overarching theme in general, at all levels and in varied forms. Public discussion or agitation of these matters appears to have had little or no effect. Attempts at shaming our leadership have been met with stoic indifference. Efforts to engage in critical discourse have been skewed. In the meanwhile, business carries on as usual.

It seems therefore that the political elite operates in a completely different paradigm, one in which the notion of subordinating personal interests to those of the community is wholly repugnant. It has perhaps been foolish for us to think or expect otherwise.

For all that it promises that paradigm is seductive; wealth, influence, power and all that these things bring with them. For some, if not many, these are highly relevant considerations, particularly so in a society that has become ever more obsessed with material gain. Others, sickened by what it is that this country has become, have left or are planning to.

What purpose then does it serve to continue to highlight the deficiencies of the system, or to propose reforms? These efforts are only meaningful if Malaysians as a whole accept the fundamentals as being of universal application, which one system of governance applies equally to all of us, and not selectively.

It is true that the state of affairs in this country has now been brought under international scrutiny by the tragic disappearance of MH370. Describing Malaysia as “an ethnically polarized society where talent often does not rise to the top of government because of patronage politics within the ruling party and a system of ethnic preferences that discourages or blocks the country’s minorities, mainly ethnic Chinese and Indians, from government service”, Thomas Fuller of the New York Times recently noted that “worldwide bafflement at the disappearance of Malaysia Airlines Flight 370 has challenged the country’s paternalistic political culture and exposed its coddled leaders to the withering judgments of critics from around the world.”

Judging by the response from our Government, it appears that very little will change.